With the glitz and glamor of Hollywood’s latest sexual harassment scandals, we have seen modern icons fall.  We have seen prominent studio executives like Harvey Weinstein, acclaimed actors like Kevin Spacey, and prolific screenwriters bite the bullet recently and collapse under the crushing weight of their own terrible actions.  While the Hollywood scandal and other major sexual harassment scandals that have happened recently have made headlines across the nation, it is easy to forget that sexual harassment is not just a tool that the rich and powerful use to dominate women.  Sexual harassment happens on a day to day basis on Main Street USA between ordinary people and it is still just as wrong as when Hollywood stars act out.sexual harassment lawyers, sexual harassment lawyer, sexual harassment attorney

That said, even sexual harassment as an iconic abuse of power tends to suck the oxygen out of the room compared to other equally terrible forms of harassment.  For example, almost everyone knows that sexual harassment is illegal in the workplace (even if they do not always know what sexual harassment means) but fewer people also realize that racial harassment, age-based harassment, and other forms of harassment are also illegal in the workplace context.  Even different types of sexual harassment are often not discussed.  This article seeks to point out one of those lesser known areas: sexual harassment between members of the same sex.

What is “Same Sex” Sexual Harassment?

When most people think of sexual harassment, they think of harassment of one member of a particular gender (normally women) by the other gender (normally men).  However, sexual harassment is not a legal rule based on different genders; it is a prohibition of harassing anyone because of his or her gender.  In other words, the law seeks primarily to protect the sexual harassment victim and cares whether the victim was harassed based on his or her gender.  This means two things.  First, either gender can be sexually harassed by anyone.  Second, perpetrators of sexual harassment cannot get away with harassment simply by choosing only to harass members of their same gender.

Oncale v. Sundowner Offshore Services Inc.

The classic case of “same sex” sexual harassment which is taught in employment law classes in law schools across the country is called Oncale v. Sundowner Offshore Services Inc.  The Oncale case was a lawsuit filed in federal court by an employee working on an offshore oilrig who claimed that he was routinely hazed by his fellow male employees. Most of the hazing incidents focused on the employee’s lack of certain male assets.  The employee was routinely called a pussy and beaten for not being as manly as his fellow rig operators.  When the case went to court, the federal judge hearing the case determined that even though all of the employees were male, “same sex” sexual harassment had occurred because the employee was targeted due to his lack of male qualities, and therefore, his gender.

How Are “Same Sex” Sexual Harassment Claims Analyzed?

The Oncale case and others like it are premised on the notion that harassing an employee because of his or her gender is bad.  Therefore, all “same sex” sexual harassment claims must follow that same theme.  An employer is not liable for “same sex” sexual harassment claims simply because an employee is either insulted or attacked by members of his or her own gender.  The harassment and assault must have been motivated by the employee victim’s gender.  sexual harassment lawyers, sexual harassment lawyer, sexual harassment attorneyIn Oncale, the Supreme Court held that “same sex” sexual harassment can be shown by one of the following: 1. evidence that the harasser is homosexual and that the harassment is motivated by sexual desire; 2. evidence that the harasser was motivated by general hostility to employees of victim’s sex; or 3. comparative evidence that the harasser treated employees of both sexes differently.  For example, if you are subjected to regular lewd jokes about your gendered appearance, ostracized by your same sex colleagues because of your gender, or if you are somehow punished for either not being “manly” or “woman” enough, you may have a claim against your employer for “same sex” sexual harassment in the workplace.

What to Do if You Have Been Harassed at Work

If you believe that you have been a victim of workplace harassment, you should first attempt to resolve your problem through your employer.  Despite the myth of useless human resources departments, many businesses take harassment allegations very seriously and will investigate. If you work for a small business that does not have a human resources department, you should raise the issue with your immediate supervisor.  If on the other hand, you are unable to resolve the situation internally, you should consider consulting with an experienced employment law attorney.sexual harassment lawyers, sexual harassment lawyer, sexual harassment attorney

If you have been a victim of workplace harassment, whether same sex sexual harassment, ordinary sexual harassment, or other forms of harassment, you should come forward and tell your story.  If you believe that you may have a legal claim against your employer for violations of the anti-workplace harassment laws, you should seek out an experienced employment law attorney to assist you in making a claim. The Law Offices of Yuriy Moshes is a law firm specializing in workplace discrimination and harassment claims in New York and New Jersey. Our firm offers white glove customer service, and we offer free legal consultations to victims of workplace harassment.  

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